Steady Targets

Field v. U.S. Bank, N.A., No. B309111 (D2d8 Jun. 9, 2022)

In a wrongful foreclosure case, the Bank propounded an interrogatory on Plaintiff, asking whether it was her contention that she did not receive the appropriate form of notice, and if so, to explain the facts in support. Plaintiff answered, simply, but un-enlighentingly, “unsure.”

So the bank moved for SJ, arguing in part that there was no evidence of any notice violation. In response, Plaintiff “claim[ed] with new-found certainty that she had never received th[e] notice.” The trial court granted summary judgment nonetheless. 

Plaintiff appeals, in part based on the idea that her rog response shouldn’t have precluded her from introducing evidence that the appropriate notice was not, in fact, given. But the Court of Appeal, in a characteristically blunt opinion by Justice Wiley, calls bullshit. 

Responding to Plaintiff’s assertion that it was unjust to grant SJ based on her one-word answer to a basic interrogatory asking for information clearly with her knowledge, the Court responds that “[w]hat is unjust is discovery abuse.” “What Field should have done was answer this simple contention interrogatory unambiguously, forthrightly, and truthfully. If her contention was she never got notice of the trustee’s sale, she had to say so and to provide the facts related to this contention.”

And then the money quote to be quoted in many a future brief : “A party opposing summary judgment may not move the target after the proponent has launched its arrow.”

Affirmed.

Having been in this spot as a defendant moving for SJ, this opinion is awesome. 

But, as the Court points out “section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Field did not attempt to amend.” What if, the day before Plaintiff filed her opp, she amended her reg responses to incorporate what she would claim in opposition? I have, over the years, written about cases that say that would have been good enough to beat summary judgment. 

There needs to be a clearer rule here. As I discussed in my prior posts, at minimum, whether a moving defendant can meet its burden should be ascertained based on the rog responses in effect at the time an SJ motion is filed, not those on file two months-plus later when the opposition comes in. To say that the movant retroactively failed to meet its burden, based on some post-motion amendment, is a recipe for gamesmanship. 

And then if, once an SJ is on file, the opponent wants to amend its responses to support the existence of disputes of fact, § 2030.310(c) is implicated. It says that a party answering an interrogatory can be forced to stick with a prior response only if:

“(1) The initial failure of the responding party to answer the interrogatory correctly has substantially prejudiced the party who propounded the interrogatory.

 (2) The responding party has failed to show substantial justification for the initial answer to that interrogatory.

 (3) The prejudice to the propounding party cannot be cured either by a continuance to permit further discovery or by the use of the initial answer [for impeachment].”

It seems to me, in the SJ context, when a non-moving party gives junky original responses to interrogatories, elements (1) and (3) of § 2030.310(c) should basically follow axiomatically, provided element (2) is established. 

That is, if at the time a party moves for SJ, the opponent has made only obviously and unjustifiably deficient responses but tries to amend around them without a good reason to do so, the moving party is substantially prejudiced. After all, it can’t get its meritorious motion decided under the prevailing standard due to its opponent’s discovery abuse. And if there’s no substantial justification for the belated amendment, a continuance doesn’t fix that prejudice. Because the issue is not that the non-moving party didn’t have time to take adequate discovery, but instead, that it was just playing games. As the Court puts it here: “Trial courts encountering such an abuse are free to disregard a later declaration that hopes to supplant tactical or slothful ambiguity with tardy specificity.”

On the other hand, if the moving party was late to produce discovery, or if previously unknown evidence legitimately comes to light after an SJ is filed, of course it is substantially justifiable to permit amendment and not stick the non-moving party with its original interrogatory answers. In that case, (1) and (3) don’t even need to come into play.